ML19331B182
| ML19331B182 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/14/1977 |
| From: | Lieberman J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-CP, NUDOCS 8007280736 | |
| Download: ML19331B182 (10) | |
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UNITED STATES OF At1 ERICA NUCLEAR REGULATORY COMMISSION BEFORE TiiE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos, 50-329
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50-330 (Midland Plant, Units 1 and 2)
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RESPONSE OF NRC STAFF TO INTERVENORS' MOTI0tl FOR IMMEDIATE SUSPENSION OF CONSTRUCTION LICENSES l - / 'M 7 I.
INTRODUCTION On December 31, 1976, Intervenors Other than Dow Chemical Company (Intervenors) filed with the Atomic Safety and Licensing Board (Board) a " Motion for Immediate Suspension of Construction Licenses" (Motion).
In support of this Motion, Intervenors submitted a " Memorandum ~of Intervenors, Other Than Dow Chemical Company, Concerning Pending Issues" (itemorandum).
This proceeding was reopened by order of the Commission, dated August 16, 1976, in accordance with the Commission's General Statement of Policy on the Environmental Effects of the Fuel Cycle (General Statement of Policy)E to consider whether the construction permits for the Midland Plants should be continued, modified, or suspended until an interim fuel cycle rule is E Environmental Effects of the Uranium Fuel Cycle (General Statement of Policy), 41 Fed. Reg. 34707, 34709 (August 16, 1976).
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THIS DOCUMENT CONTAINS P00R QUALITY PAGES 6
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m 2-in effect.2_/ The Board was directed to consider this issue in light of the facts and applicable law and to hold evidentiary hearings if necessary.
On September 3,1976, the Intervenors filed a Motion with the Comenission to halt construction of the Midland facility pending resolution of the issues remanded by the Court of Appeals in rie;,on Aeschliman, et al. v.
U. S. Nuclear Regulatory Commissia '
__F.2d _ (D.C.Cir. Nos. 73-1776 and 73-1867, July 21,1976) or in the alternative, to amend the Comission's E by ordering this Board to consider the additional order of August 16, 1976 issues remanded in Aeschliman.N By Memorandum and Order dated September 14, 1976, the Commission denied the Intervenors' Motion for suspension stating that "the question of modification or suspension of the Consumers Power...
licenses is not appropriate for summary disposition and should be decided
'in formal proceedings in light of the facts and applicable law.'"E The Commission did grant the Intervenors' fiction to expand the issues to be U Consumers Power Company (Midland Units 1 and 2), CLI-76-ll, URCI-76/8' 65(August 16, 1976).
E Supra, note 2.
N The issues in Aeschliman, in addition to the environmental effects of nuclear waste disposal and fuel reprocessing, consisted of energy con-servation as a partial or complete substitute for construction, any changed circumstances concerning the need of the Dow Chemical Company for process steam and the impact of the continued operation of the Dow's fossil fuel generating facilities, and clarification of a report by the Advisory Committee on Reactor Safeguards.
E Consumers Power Company (Mi.iland Units 1 and 2), CLI-76-14, NRCI-76/9 165, 167 (September 14, 1976).
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. considered by this Board to include the remainder of the remanded issues.U Accordingly, this Board ordered an evidentiary hearing on i.ne question of suspension pending the outcome of the reopened proceeding on the issues remanded for consideration by the Court of Appeals in Aeschliman.U On September 27, 1976, the Mapleton and Saginaw Intervenors filed a Motion before this Board to adjourn any hearing in connection with the suspension proceedings and resolve the suspension issue solely on the basis of legal briefs or in the alternative, defer the evidentiary hearing to a later date.
By Orde:, dated October 4,1976, the Board denied the Intervenors' Motion for suspension and ordered a continuation of the evidentiary hearing.E The Board's denial of the Intervenors' September 27, 1976 Motion was based, inter alia, on a recognition of the General Statement of Policy, which indicated that such suspension issues are generally not appropriate for summary disposition, and a finding that the present record does not have sufficient facts to permit a reasoned determination on the suspension issue.E E Supra, note 4.
U Consumers Power Comoany (Midland Units 1 and 2), Docket Nos. 50-329, 50-330, unpublished Licensing Board Notice and Order Setting a Hearing on Continuation, Modification or Suspension of Construction Permits (September 21,1976).
U Consumers Power Company (Midland Units 1 and 2), Docket Nos. 50-329, 50-330, unpublished Licensing Board Notice and Order Rescheduling Hearing (October 4, 1976).
U Consumers Power Company (Midland Units 1 and 2), Docket Nos. 50-329, 50-330, unpublished ' Licensing Board Memorandum (October 21,1976).
r 9 The Board was directed on November 5, 1976 by the Commission to defer consideration of whether the construction permits for the Midland Plant should be continued, modified, or suspended pending the adoption of an interim fuel cycle rule.E The Board was further directed to continue consideration of whether the construction permit should be continued, modified or suspended in light of the remaining remanded issues.b Now that the evidentiary hearing has begun, the Intervenors have again renewed their motion for immediate suspension of the construction permits.
b Consumers Power Company (Midland Units 1. and 2), CLI-76 _, NRCI-76/ll (November 6, 1976),
b Supra, note 4.
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. II. ARGUf1ENT In their Motion and Supporting Memorandum, the Intervenors seek the Board to impose a temporary suspension pending the resolution of the issues re-manded by the court in Aeschliman and ordered to be addressed by the Com-mission in its November 5, 1976 Order.
The Court in Aeschliman remanded the issues to the Commission for further proceedings but did not suspend the construction permits.
It is the Staff's )osition supported by the case law and the Commission's General Policy Statement that the issue of suspension of the construction permits turns on equitable factors and, therefore, suspension of the permits is not automatic.--12/
Thus this Board has correctly determined that the questions of modificatio r suspension should be resolved in-formal pro-ceedings in light of the facts and applicable law and has concluded evidentiary hearings are required.--13/
The Commission has given guidance as to the equitable factors that should be considered in a temporary suspension of construction permit. These factors are found in the General Statement of Policy and have been adopted by this Board in its Memorandum of October 21, 1976.
The appropriate factors are:
12/- Supra, note 1 at 34709 and the cases there cited.
13/ Supra, note 7.
-14/ Supra, note 9, at 2.
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Whether it is likely that significant adverse impacts will occur pending the resolution of the remanded issues; 2.
Whether reasonable alternatives will be foreclosed by continued construction; 3.
The effects of delay; 4.
The possibility that the cost benefit analysis will be tilted to increase investment; 5.
General public policy concerns; 6.
The extent of the NEPA violation; and 7.
The timeliness of the objections.
-The hearing to obtain evidence on the above factors is now in progress.
s The Inter"enors argue in support af their Motion that immediate susper.-
sion is required because testimon taken to date at the evidentiary hearing leads to the conclusio, that a adical change has occurred in the factual situation on which the Midland Final Environmental Statement and cost-benefit analysis were based. This argument is based on the testimony given at this hearing by Joseph A. Temple, Jr. (following Tr. 218).
The record does not support Interverors' argument.
Mr. Temple testified that Dow's corporate positiv., continues to be one of support for the Midland Nuclear Plant and a commitment to utilize its precess steam. -(Temple Testimony, pp. 2-3, p. 8).
So long as Dow continues to support the 15/ Supra, note 1.
- 16/
Intervenors' Memorandum, at 17.
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- Midland facility with the intent to utilize its process steam, it cannot be said that'the factual context has changed so radically as to warrant immediate suspension.
More importantly, no matter what conclusion may ultimately be reached in this case, any conclusion is premature at this time. Mr. Temple's testi-many is not yet complete (Tr. 465).
Furthermore, there are other witnesses to be called to present evidence on the factors that should be considered and balanced in reaching a deci-sion as to whether to continue, modify, or suspend the construction permit 'in this proceeding. Thus, the factual record is incomplete.
III.
CONCLUSION It is the Staff's position that this Board, as it has previously recognized, in its Memorandum of October 21, 1976, must consider all the evidence relevant to the equitable factors provided by the Commission in the General Statement of Policy in making its determination as to whether the construc-tion permits should be continued, modified, or suspended. After such con-sideration of the evide, ice, and balancing of the equitable factors, tne suspension issue should be resolved.
The evidence taken to date fails to 17/ Supra, note 9.
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- support any argument that immediate suspension is in order.
Accordingly, Intervenors' Motion should be denied.
Respectfully submitted, i
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James Lieberman Counsel for NRC Staff Dated at Bethesda, Maryland, this 14th day of January, 1977.
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. U:lITr.0 STATES OF AMERICA fiUCLEAR REGULATORY C034ISSIGi.
- BEFORE THE ATOMIC SAFETY A!!D'LICElSIllG BOARD In' the Matter of
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C0ilSUMERS POWER C0f'PA'lY Dockei fios~. '50-329
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50-330 (Midland Plant, Units 1 and 2)
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l CERTIFICATE OF SERVICE I hereby certify that copies of "RESPO!!SE OF NRC STAFF TO IflTERVEliORS' MOTI0tt -FOR Ill'4EDIATE SUSPE!iSI0il 0F C0tiSTRUCTI0ff LICEllSES" dated January _ 14,_1977, in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class or air mail, this 14th day of January,1977:
. Schneider Frederit
- 1. Coufal, Esq., Chairman to e Gnr Atomic Sa.ety and Licensing Board State of Kansas ~ Statehouse U. S. !!uclear Regulatory Commssien Topeka, Kansas 66612 Ifashington, D. C.
205n Ms. Mary Sinclair Dr. J. Venn Leeds, Jr.
5711 Succerset Street -
Atomic Safety and Licensing Midland, Michican 48640 Board Panel 10807 Atwell Harold F. Reis, Esq.
Houston,-Texas 77095 Robert Lowenstein,- Esq.
Lowenstein, !!ewman, Reis '&
Dr. Erreth A. Luet'te
-Axelrad
.1025 Connecticut Avenue Atomic Safety and Licensing '
' Washington, D.
C.'
20036 Board Panel
< U. S. l1uclear Regulatory Comission Washington, D. C.
20555 Atomic Safety and Licensing Board Panel Myron M. Cherry, Esq.
U. S. fluclear Regulatory Cornission 1 IBM Plaza Washington, D..C.
20555 Chicago, Illinois 60611 L. F. flute,'Esq.
Judd L. Bacon, Esq.
Dow Chemical, U.S.A.
Consumers Power Company Michigan Division '
- 212 West Hichigan Avenue Midland, Michigan 48640-Jackson, Michigan 49201 i
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- R. Rex Renfrow, III, Esq.
David J. Rosso,:Esq.
Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washingten, D. C.
20555 Docketing -and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D.~C.
20555-Mr. Steve Gadler 2120 Carter Avenue St. Paul, Minnesota 55108 b %vm
.1 /&s James Lieberman
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Cc unsel for NRC Staff